By Francis Barry
A fear has spread across the U.S. that has nothing to do with Ebola. White hazmat suits will be popular on Halloween, but on Election Day, many voters will be most frightened by the prospect of those in black robes who don’t share their political beliefs. To protect themselves from these gavel-wielding ghouls, states are increasingly trying to turn their constitutions into shields.
Voters in Alabama will decide whether to adopt a constitutional amendment guaranteeing the right to bear arms, even though the state constitution and U.S. Constitution already guarantee that right.
In Oregon, the ballot will include a constitutional amendment guaranteeing equal rights for women, even though the state’s highest court has ruled that its constitution guarantees them.
And in Illinois, voters will decide whether to adopt a constitutional amendment guaranteeing the right to vote regardless of race, religion, sex, sexual orientation, or income — even though federal law and the U.S. Constitution effectively provide those guarantees.
All three initiatives are based in a deep distrust of the judiciary. Both liberals and conservatives believe that the courts have undermined core constitutional rights. Each is afraid of what the courts may do in the future. And each is seeking to make rights more explicit and limit the ability of the judiciary to infringe upon them.
What looks at first like political paranoia is actually a rational response to constitutional conflict.
Conservatives have long been critical of “judicial activism.” Lately liberals have felt similarly aggrieved. The Supreme Court has created new religious rights for corporations (Hobby Lobby) and new political rights for the wealthy (Citizens United and McCutcheon) while striking down a core component of the 1965 Voting Rights Act (Shelby) and upholding voter identification laws (Crawford).
Liberals fear corporate power is threatening democratic rights and ideals, while conservatives fear government power is threatening traditional values and culture. But their conclusion is the same: The courts are dangerous.
Hence the proposals to amend state constitutions, which can provide a bulwark against the judiciary. State courts in Pennsylvania and Arkansas have struck down voter identification requirements that ran afoul of their state constitutions. Likewise, supporters of the right to vote amendment in Illinois hope to make it harder for future legislatures to adopt voter identification laws, and harder for judges to affirm them.
The same impulse is evident in Alabama and Oregon. The Alabama ballot initiative would make any restriction on gun rights “subject to strict scrutiny” — a step that Missouri and Louisiana have recently taken.
Women’s rights in Oregon would appear as safe as gun rights in Alabama, but as the president of Oregon Women Lawyers said recently: “We don’t necessarily anticipate that the [state] Supreme Court would revoke gender equality, but a particularly aggressive litigant could argue that the original framers didn’t intend for women to have equal rights.” Better safe than sorry.
Meanwhile in Tennessee, voters will determine whether to add a constitutional amendment giving the legislature broader authority to enact restrictions on abortion, some of which were struck down by a state court in 2000. In Mississippi, the ballot will include a constitutional amendment guaranteeing the right to hunt and fish, which 17 other states have added, most of them over the past decade. Earlier this year voters in Missouri joined North Dakota in enacting a constitutional amendment guaranteeing the right to farm.
All of these efforts are aimed primarily at circumscribing courts, and there will be more in the years ahead. That’s not paranoia. It’s democracy.